Are unsolicited complaints about Arkansas public employees subject to release under FOIA?

Arkansas AG Opinion 2013-123: Employee Complaint Records

Plain-English summary

Opinion 2013-123 explained how an Arkansas public-records custodian should review complaints concerning police-department employees who had been placed on administrative leave. Because the AG did not receive the records, the opinion did not independently decide whether each document should be released.

"Not having been provided copies of the records at issue, I can do no more than set forth the test the custodian should apply in reviewing her provisional determination to release the requested records."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

On the facts assumed, the complaints were unsolicited and therefore treated as personnel records. Such records were open unless disclosure would be a clearly unwarranted invasion of personal privacy. The custodian had to weigh any more-than-minimal privacy interest against the public interest, with the balance favoring disclosure.

"Accordingly, I assume they were unsolicited, which means that they are indeed your ‘personnel records.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"A personnel record is open to public inspection and copying except ‘to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"The balancing takes place with a thumb on the scale favoring disclosure."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why were the complaints treated as personnel records?

The opinion assumed they were not created by or at a supervisor's request and that they contained information about the employee's individual employment.

"I have no information to suggest that the ‘complaints’ were created by or at the behest of your supervisor."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"They also qualify as your personnel records inasmuch as they presumably contain information pertaining to your individual employment."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

How did the privacy balancing test work?

First, the custodian had to decide whether the information was personal or intimate enough to create more than a minimal privacy interest. If so, the custodian then had to compare that interest with the public interest in disclosure.

"First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to greater than de minimus privacy interest."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public’s interest in disclosure."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What counted as a public interest in disclosure?

The opinion used the extent to which release would illuminate an agency's statutory work or tell citizens what their government was doing.

"the public’s interest is measured by ‘the extent to which disclosure of the information sought would “shed light on an agency’s performance of its statutory duties” or otherwise let citizens know “what their government is up to.”’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Who carried the burden of resisting disclosure?

The person opposing release had to show that the privacy interest outweighed the public interest.

"the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public’s interests."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Did the employee's personal view that disclosure was unfair control?

No. The opinion said the test was objective, so the record subject's own view was not decisive.

"the fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Background and statutory framework

The request concerned complaints about University of Arkansas at Pine Bluff police-department officers or personnel who had been placed on administrative leave during the preceding three years. The custodian provisionally chose release, and the affected employee sought AG review.

"The custodian has provisionally determined to release these records, subject to your entitlement, which you have elected to exercise, to seek my review of this tentative decision."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The opinion distinguished unsolicited complaints from employee-evaluation or job-performance records. A complaint solicited by a supervisor ordinarily fell into the evaluation-record category, which used another disclosure test.

"A complaint solicited by a supervisor ordinarily falls into the other category of records that are subject to this office’s review under the FOIA — ‘employee evaluation or job performance records.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Holding

The AG conditionally agreed with release if the custodian had correctly applied the balancing test and found that the public interest outweighed the employee's privacy interest.

"Assuming the custodian has properly applied the balancing test set forth above and has determined that the public interest in disclosure outweighs you privacy interest, I agree that disclosure would not rise to the level of a ‘clearly unwarranted invasion of personal privacy.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Citations and references

Statutes discussed by Opinion 2013-123:

• "A.C.A. § 25-19-105(c)(3)(B)(i)" Official opinions search
• "A.C.A. § 25-19-105(c)(1)" Official opinions search

Cases cited by Opinion 2013-123:

• "Young v. Rice" Official opinions search
• "Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125 (1998)" Official opinions search
• "Department of Defense v. FLRA, 510 U.S. 487, 497 (1994)" Official opinions search

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-123

September 27, 2013

Mr. Alton Davis

c/o JoAnn Maxey, Associate General Counsel
University of Arkansas System

2404 N. University

Little Rock, Arkansas 72207

Dear Mr. Davis:

I am writing in response to your request for my opinion regarding the application
of the Arkansas Freedom of Information Act (the “FOIA”).” The FOIA authorizes
the custodian, requester, or the subject of personnel or employee evaluation
records to seek an opinion from this office determining the legal propriety of the
custodian’s provisional decision regarding the release of requested records.”

The FOIA request here at issue was directed to the custodian of records of the
University of Arkansas at Pine Bluff. The custodian has determined that certain
documents, which she characterizes as your “personnel records,” fall within the
scope of a request for “[aJll Verbal and Writing Complaints ... concerning every
officers [sic] and personnel within the police department!! which lead [sic] to the
officer or personnel being placed on Administration Leave within the last three
years.” The custodian has provisionally determined to release these records,
subject to your entitlement, which you have elected to exercise, to seek my review
of this tentative decision. Not having been provided copies of the records at issue,
I can do no more than set forth the test the custodian should apply in reviewing her
provisional determination to release the requested records.

"A.C.A, §§ 25-19-101 — 110 (Repl. 2002 and Supp. 2011).
? A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2011).

The referenced “police department” is reportedly the Public Safety and Police Department of the

University of Arkansas at Pine Bluff.

323 CENTER STREET, SUITE 200 * LitTLe Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Mr. Alton Davis

c/o JoAnn Maxey, Associate General Counsel
University of Arkansas System

Opinion No. 2013-123

Page 2

I have no information to suggest that the “complaints” were created by or at the
behest of your supervisor.’ Accordingly, I assume they were unsolicited, which
means that they are indeed your “personnel records.”” They also qualify as your
personnel records inasmuch as they presumably contain information pertaining to
your individual employment.°

A personnel record is open to public inspection and copying except “to the extent
that disclosure would constitute a clearly unwarranted invasion of personal
privacy.”’ While the FOIA does not define this phrase, the Arkansas Supreme
Court, in Young v. Rice,* stated that in order to determine whether the release of a
personnel record would constitute a “clearly unwarranted invasion of personal
privacy,” a balancing test must be applied. Under the test, the public’s interest in
accessing the records is weighed against the individual’s interest in keeping the
records private. The balancing takes place with a thumb on the scale favoring
disclosure. To aid in conducting the balancing test, the Court has prescribed a
two-step approach. First, the custodian must assess whether the information
contained in the requested document is of a personal or intimate nature such that it
gives rise to greater than de minimus privacy interest.” If the privacy interest is

• A complaint solicited by a supervisor ordinarily falls into the other category of records that are subject to
  this office’s review under the FOIA — “employee evaluation or job performance records.” A.C.A. § 25-19-
  105(c)(1). The FOIA does not define this category of records, which is subject to another test for
  disclosure. However, the Arkansas Supreme Court has stated, consistent with previous opinions of this
  office, that it refers to any records (1) created by or at the behest of the employer (2) to evaluate the
  employee (3) that detail the employee’s performance or lack of performance on the job. Thomas y. Hall,
  2012 Ark. 66, =S.W.3d____ (Feb. 16, 2012); see, e.g., Ops. Att'y Gen. 2009-067, 2005-030, and 93-055.

° See, e.g., Ops. Att’y Gen. 2011-152, pp. 3-4; 2008-064, pp. 5-6; 2002-210. See also generally Op, Att’y
Gen. 2008-064 (explaining why unsolicited complaints constitute personnel records rather than employee
evaluation or job performance records.)

° This office has consistently opined that “personnel records” are all records other than employee
evaluation and job performance records that pertain to individual employees. See, e.g., Op. Att’y Gen. 99-

147. See also John J. Watkins & Richard J, Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187
     (Arkansas Law Press, 5th ed., 2009).

7 A.CA. § 25-19-105(b)(12).

• Young v, Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

9 td. at 598.

Mr. Alton Davis

c/o JoAnn Maxey, Associate General Counsel
University of Arkansas System

Opinion No. 2013-123

Page 3

merely de minimus, then the thumb on the scale favoring disclosure outweighs the
privacy interest. Second, if the information does give rise to a greater than de
minimus privacy interest, then the custodian must determine whether that interest
is outweighed by the public’s interest in disclosure.'? According to the Arkansas
Supreme Court, the public’s interest is measured by “the extent to which
disclosure of the information sought would ‘shed light on an agency’s
performance of its statutory duties’ or otherwise let citizens know ‘what their
government is up to.’”'! If the public interest in this regard is substantial, it will
usually outweigh any privacy interest.’

Because the exceptions must be narrowly construed, the person resisting
disclosure bears the burden of showing that, under the circumstances, his privacy
interests outweigh the public’s interests.'? Additionally, the fact that the subject of
any such records may consider release of the records an unwarranted invasion of
personal privacy is irrelevant to the analysis because the test is objective.'*

Assuming the custodian has properly applied the balancing test set forth above and
has determined that the public interest in disclosure outweighs you privacy
interest, I agree that disclosure would not rise to the level of a “clearly
unwarranted invasion of personal privacy.” Under these circumstances, releasing
the records would not offend the provisions of the FOIA.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I
hereby approve.

Sincerely,

DUSTIN 0

Attorney General

10 Ig

"' Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125 (1998), quoting Department of Defense v. FLRA,
510 U.S. 487, 497 (1994),

Young, supra, n. 8.

3 Iq.

4 See Op. Att’y Gen. 2013-012 (and opinions cited therein).